During the fall of 1997 and in February of
1998, appellant was tried by a general court-martial composed of officer
members at Fort Bliss, Texas. Contrary to her pleas, she was found guilty
of two specifications of larceny, conduct unbecoming an officer, and two
specifications of service-discrediting conduct (mail tampering and obstruction
of justice), in violation of Articles 121, 133, and 134, Uniform Code of
Military Justice, 10 USC §§ 921, 933, and 934, respectively.
The military judge then dismissed the two larceny specifications as multiplicious
with the remaining offenses, and the members sentenced appellant to a dismissal,
1 year's confinement, and total forfeitures on February 6, 1998. The convening
authority on May 19, 1998, approved this sentence, and the Court of Criminal
Appeals affirmed on October 1, 1999.

On May 19, 2000, this Court granted review
on the following two issues of law:

I. WHETHER THE CONVENING AUTHORITY EXERCISED
UNLAWFUL COMMAND INFLUENCE OVER THE PROCEEDINGS BY REQUIRING THE COURT
MEMBERS, IN THE MIDDLE OF THE TRIAL, TO ATTEND AN OFFICER PROFESSIONAL
DEVELOPMENT PROGRAM WHERE "APPROPRIATE" PUNISHMENTS FOR OFFICER COURT-MARTIAL
DEFENDANTS WAS DISCUSSED.

II. WHETHER APPELLANT IS ENTITLED TO RELIEF
ON SENTENCE AS REDRESS FOR THE GOVERNMENT’S VIOLATIONS OF ARTICLE 55 WHILE
APPELLANT WAS IN POST-TRIAL CONFINEMENT.

We hold that appellant is not entitled to relief
based on her complaints about the alleged conditions of her post-trial
confinement. SeeUnited States v. Avila, 53 MJ 99 (2000).
Nevertheless, we set aside the decision of the appellate court below and
remand this case for a DuBay1
hearing on the issue of unlawful command influence. SeeUnited
States v. Dykes, 38 MJ 270 (CMA 1993).

Nine months after her court-martial, appellant
signed a statement and later filed it with the Court of Criminal Appeals.
SeeUnited States v. Grostefon, 12 MJ 431 (CMA 1982). It said:

AFFADAVIT [sic]November 20, 1998

I, Holly M. Baldwin, would like to make the following
statement. Shortly after I was transferred from Fort Lewis to Fort Bliss
(fall 1997), Ft. Bliss was having a Family Values Week. One of the Officer
Professional Development programs mandated by Commanding General Costello
was one directed at Ethics. At that particular OPD, one of the topics discussed
was an incident that happened with three of the Officers in the 31st
ADA BDE that were being court-martialed. The address included comments
that the court-martial sentences were too lenient and that the minimum
sentence should be at least one year and that Officers should be punished
harsher than enlisted soldiers because Officers should always set the example
and be above reproach. The day after this OPD one of the officers from
the 31st was set to be sentenced. I believe his name was Major
Brennan. I attended this OPD, but didn't learn of the sentencing
until a discussion I had with his attorney, Mr. Jim Maus. He is an attorney
in my civilian attorney’s (Jim Darnell) law office in El Paso, TX. Mr.
Maus was Major Brennan’s civilian counsel. Mr. Maus also informed me that
this type of OPD was inappropriate and that it could be considered jury
tampering and he was filing an appeal on Major Brennan’s behalf stating
such.

On the day of my conviction and sentencing,
the final part of the trial was delayed for another OPD that was mandatory
for all Officers on post. This OPD dealt with the situation Lt. Kelly
Flynn was embroiled [sic]. The theme about this OPD was that she was not
punished as she should have been and that she had basically gotten over.
It was then stated she should not have been allowed to resign, but should
have been court-martialed. I would also like to note here that I submitted
a Resignation for Good of Service [sic] on or about 1 May 97 and it was
held and never sent up as the regulation states. That afternoon after the
officers on my panel went to the OPD, I was convicted and sentenced to
1 year at Ft. Leavenworth. It should also be noted that 4 of the officers
on my panel were in the same rating chain. They included the Brigade Commander,
Brigade Deputy Commander, the HHC Company Commander and another BDE Primary
Officer.

I swear the above mentioned statement is true
to the best of knowledge.

Signed Holly Morris BaldwinDate November 20, 1998

(Emphasis added).

Appellant argued that "her sentence to one
year in confinement and the rejection of her request for Resignation for
the Good of the Service was the result of these actions, which clearly
constitute unlawful command influence in this case." The Government did
not oppose this motion to file, but in its final brief it simply asserted
that "it [appellant’s claim] lacks merit." The Court of Criminal Appeals
summarily affirmed this case.

___ ___ ___

I

The Government argues that appellant’s post-trial
claim of unlawful command influence should be denied because she "has failed
to meet her threshold burden of production in this case." Final Brief at
7. It further contends that "[a]ppellant’s own ambiguous, self-serving,
and unsubstantiated declaration does not establish a viable claim of unlawful
command influence." Moreover, it notes that "appellant never raised this
issue at trial" nor made any "effort to bring this allegation to the military
judge’s attention and conduct some minimal voir dire before findings
and sentence deliberations." Id. We conclude that none of these
reasons legally justifies the lower appellate court’s summary denial of
appellant’s post-trial claim of unlawful command influence. 2

Article 37, UCMJ, 10 USC § 837, states:

§ 837. Art. 37. Unlawfully influencing
action of court

(a) No authority convening a general, special,
or summary court-martial, nor any other commanding officer, may censure,
reprimand, or admonish the court or any member, military judge, or counsel
thereof, with respect to the findings or sentence adjudged by the court,
or with respect to any other exercises of its or his functions in the conduct
of the proceedings. No person subject to this chapter may attempt to
coerce or, by any unauthorized means, influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the
findings or sentence in any case, or the action of any convening, approving,
or reviewing authority with respect to his judicial acts. The foregoing
provisions of the subsection shall not apply with respect to (1) general
instructional or informational courses in military justice if such courses
are designed solely for the purpose of instructingmembers of a
command in the substantive and procedural aspects of courts-martial, or
(2) to statements and instructions given in open court by the military
judge, president of a special court-martial, or counsel.

(Emphasis added.)

We have long held that the use of command meetings
to purposefully influence the members in determining a court-martial sentence
violates Article 37, UCMJ. United States v. Levite, 25 MJ 334, 339
(CMA 1987); United States v. Cruz, 25 MJ 326, 329 (CMA 1987); United
States v. Thomas, 22 MJ 388, 393 (CMA 1986); United States v. McCann,
8 USCMA 675, 676, 25 CMR 179, 180 (1958). Moreover, we have also held that
the mere "confluence" of the timing of such meetings with members during
ongoing courts-martials and their subject matter dealing with court-martial
sentences can require a sentence rehearing. SeeUnited States
v. Brice, 19 MJ 170, 172 n.3 (CMA 1985).

Here, appellant avers that there were two command
officer meetings before and during her court-martial, which she and the
officers of her panel attended. She also avers that various court-martial
situations on base and in the Air Force at large were discussed. Furthermore,
she asserts that comments were made that court-martial sentences were too
lenient; that officers should always be punished more harshly than enlisted
persons; and that the minimum sentences should be 1 year. Finally, appellant
points out that she, an officer, subsequently received a 1-year sentence
at her court-martial. If appellant’s averments are true, then as in Brice,
a confluence of timing and subject matter would exist.

The Government contends, however, that appellant’s
self-serving averments are not legally sufficient (or competent) to raise
her post-trial claim. We disagree. In United States v. Ayala, 43
MJ 296, 300 (1995), this Court held that "[t]he quantum of evidence necessary
to raise unlawful command influence is the same as that required to submit
a factual issue to the trier of fact." While not particularly delineating
the proof required, we have generally held that it must be more than "mere
speculation." SeeUnited States v. Biagase, 50 MJ 143, 150
(1999). Here, appellant’s post-trial statement was based on her own observations
(cf. United States v. Ruiz, 49 MJ 340, 348 (1998) (no abuse
of discretion for convening authority to refuse to order post-trial hearing
on basis of unsubstantiated assertions of unlawful command influence by
counsel)), and it was detailed in nature. Cf. United States v.
Johnston, 39 MJ 242, 244 (CMA 1994) (must be more than a bare allegation).
Moreover, the record of trial, which contains an unexplained decision to
delay any sessions on the date in question until the early afternoon, may
be viewed as tending to corroborate appellant’s allegation that there was
a command meeting at that time. In the absence of any post-trial submission
from the Government, we conclude appellant’s allegations in this context
are sufficient to raise a post-trial complaint of unlawful command influence.
SeeUnited States v. Ayala, supra (some evidence to which a member
might reasonably attach credit); seegenerallyUnited
States v. Ginn, 47 MJ 236, 248 (1997) (third principle: "if the affidavit
is factually adequate on its face to state a claim of legal error. . .
.").

Although we reject the Government’s legal insufficiency
claim, we are reluctant to order relief without a complete record concerning
appellant’s claim. A full development of the material facts surrounding
these command meetings and their effect on appellant’s court-martial is
required. SeeUnited States v. Dykes, 38 MJ 270; see alsoUnited States v. Fricke, 53 MJ 149, 155 (2000). Accordingly, a DuBay
hearing should be ordered. Id.

II

We also must address appellant’s claim that
her post-trial confinement violated Article 55, UCMJ, 10 USC § 855.
Her claim is that "[w]hile confined at the USDB, [she] and her unborn child
were intentionally placed at risk by knowingly exposing [them] to dangerous
levels of lead, industrial chemicals and fumes and potentially contaminated
food and water. [She] was denied proper prenatal care, and shackled and
hand-cuffed without cause." Final Brief at 13. Appellant asks that we set
aside her adjudged and automatic forfeitures as a remedy for her unlawful
post-trial punishment. 3

We initially note that appellant asserts that
she was 2 months pregnant when she was confined at the United States Disciplinary
Barracks on February 11, 1998. She further asserts that she remained confined
there until June of 1998, when she was transferred to the Federal Bureau
of Prisons Facility in Fort Worth, Texas. Finally, she asserts that she
was released on August 22, 1998, 3 months before her minimum release date
because of action by the Army Clemency and Parole Board. It is conceded
that her baby was born after her release from confinement, and there is
no claim that either she or her baby was actually injured as a result of
the alleged conditions of her post-trial punishment.

We conclude that appellant has not demonstrated
that the averred conditions of her confinement amounted to a violation
of Article 55, UCMJ. SeeUnited States v. Avila, 53 MJ at
101. 4 As noted above, there
is no showing that she was actually pained or injured as a result of these
conditions. The absence of a showing of pain or injury, as well as the
absence of a showing of punitive intent on the part of prison officials,
undermine her legal claim. SeeUnited States v. Sanchez,
53 MJ 393, 395-96 (2000).

In addition, in United States v. Avila,
supra
at 102, this Court rejected a convicted prisoner’s claim of improper punishment
under Article 55, UCMJ, and under the Eighth Amendment where the "[a]ppellant
ha[d] not demonstrated that the conditions of his confinement were more
adverse than those faced by civilian prisoners whose claims of cruel and
unusual punishment have been rejected by other courts." In view of relevant
federal case law, we conclude that appellant’s claim does not reach that
level. SeeColeman v. Rahija, 114 F.3d 778, 784-85 (8th
Cir. 1997) (2-hour delay of medical services causing prisoner in labor
extreme pain and suffering is legally sufficient);
Archer v. Dutcher,
733 F.2d 14, 15 (2d Cir. 1984) (intentional delay in treatment purposefully
causing extreme pain and later miscarriage is legally sufficient).

The decision of the United States Army Court
of Criminal Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for submission to a convening authority
for a limited hearing on the issue of command influence. At the conclusion
of the hearing, the judge will make specific findings of fact on that issue.
A verbatim record of the proceedings will be submitted after authentication
to the Court of Criminal Appeals for further review. Thereafter, Article
67(a)(3), UCMJ, 10 USC § 867(a)(3), shall apply.

FOOTNOTES:

1United States v.
DuBay, 17 USCMA 147, 37 CMR 411 (1967).

2 We reject
the Government’s claim of waiver. We have never held that an issue of unlawful
command influence arising during trial may be waived by a failure to object
or call the matter to the trial judge’s attention. Cf. United
States v. Weasler, 43 MJ 15 (1995) (pretrial agreement initiated by
accused waived any objection to unlawful command influence in the preferral
and referral of charges); United States v. Richter, 51 MJ 213, 224
(1999).

3 We reject
appellant’s shackle and handcuff argument because she has not provided
sufficient evidence to demonstrate that correction officials’ use of shackles
went beyond what was reasonable to assure safe control of a new inmate.
See
Art. 55, UCMJ ("The use of irons, single or double, except for the purpose
of safe custody, is prohibited.").

4 We find
it unnecessary for disposition of this case to determine whether appellant
exhausted her administrative remedies to complain about her confinement
conditions, to include her assertion that Army regulations prevented her
from filing an Article 138, UCMJ, 10 USC § 938, complaint. See
generallyUnited States v. Miller, 46 MJ 248 (1997); United
States v. Coffey, 38 MJ 290 (CMA 1993).